Presidential Immunity

Excitement is running high after the Supreme Court released its decision on the immunity of presidential actions. Even though only a minority might have read the full reasoning and dissenting opinions of this ruling, the significance of this decision cannot be underestimated. So, what’s it all about, and what exactly did the U.S. Supreme Court decide?


At the heart of the matter is the question of whether presidents can be criminally prosecuted for their actions while in office. This question has remained unresolved in the U.S., and up until now, we’ve relied on more informal rules. It was widely accepted legal practice that no sitting president should be put on trial, as this could severely hinder their ability to govern. However, this rule did not apply to the time after a president left office. For example, former President Nixon avoided a trial thanks to a post-presidency pardon by his successor. The Watergate scandal has often been referenced in the context of Trump's presidency. It hinted at an interpretation that presidential actions in office might deserve special treatment, at least justifying the pardon of presidents for potential crimes committed while in office.


So far, there hasn't been a clear legal interpretation for cases where a president is indicted after leaving office. But that changed with Trump. In various proceedings, the former president is currently defending himself before federal courts and in some states. His lawyers argue that this isn’t right because presidents enjoy immunity for their actions in office. Lower courts have rejected this argument so far, but the Supreme Court has now partially sided with Trump. This ruling impacts the legal cases against Trump, but more importantly, it shakes the stability pillars of the U.S. system of checks and balances, deeply unsettling the foundations of democracy. It’s no coincidence that the three liberal justices on the Supreme Court ended their dissenting opinion with the words: “With fear for our democracy, I dissent.”


So, what does this ruling mean for the legal proceedings against Trump? Most importantly for Trump in the short term: it’s highly unlikely that the ongoing cases will proceed or be concluded before the November election. This is a significant political victory for Trump, allowing him to focus primarily on his campaign. Moreover, the Supreme Court's decision makes it much harder for prosecutors to justify their charges, as they now have to navigate the complex nuances of the ruling to determine which of Trump’s actions are criminal and which are covered by the court’s immunity decision. And this is where it gets complex and opaque. The court distinguishes three types of presidential actions that need to be evaluated differently: first, they differentiate between ‘official acts’ and ‘non-official acts.’ For the latter, there is no immunity, and presidents can be prosecuted for such actions. For ‘official acts,’ the majority of the justices further distinguish between powers granted by the Constitution and those granted by Congress. For the former, the court declares absolute immunity for presidential actions; for the latter, they establish a presumptive immunity, meaning that it must be determined on a case-by-case basis whether the president has illegally exceeded his authority. And this is where it gets tricky: how do you decide what ‘official acts’ and ‘non-official acts’ are? The majority opinion discusses this a bit but ultimately refers the case back to the lower courts to review the charges against Trump in light of these distinctions. Can Trump still be indicted and convicted? Yes, but the court has made it significantly harder for the prosecution.


So, Trump is clearly the winner of this Supreme Court decision, even though it doesn’t necessarily mean that the ongoing lawsuits against him won’t proceed. But for now, he doesn’t have to worry about the charges before the election, and if he wins the election, the dynamics will change fundamentally, and it’s uncertain how the Supreme Court’s decision will impact the proceedings then. And here we come to the real issue: the Supreme Court's decision massively strengthens the president's position within the system of checks and balances. For powers assigned to the office by the Constitution, presidents now have absolute immunity! This means there are no longer legal mechanisms to hold presidents accountable for these actions. Such an assessment cannot be read from the Constitution itself and must be seen in the context of the current development towards authoritarian structures in the U.S. political system as a catastrophic decision. Trump's announcement that he would be a dictator on the first day of his potential second term is now, in part, constitutionally supported and thereby legitimized by the Supreme Court’s decision.

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